Top Menu

Navigation

OECD Revises Its “Recommendations” And Green Lights The Facade Of Enforcement

By on November 30, 2021 in Deferred Prosecution Agreements, Gray Cloud, Non-Prosecution Agreement, OECD
Greenlight

Recently, the OECD released a laundry list of updated recommendations for “further combating bribery of foreign public officials in international business transactions.”

As further proof that the OECD prioritizes quantity of enforcement over quality of enforcement (see here), the OECD is now recommending that member countries to the OECD Anti-Bribery Convention “consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions.”

By doing so, the OECD is green lighting the “facade” of enforcement (see here and here for prior articles on the subject).

Continue Reading

Deputy AG Monaco On Individual Accountability, Prior Misconduct, Monitors, And NPAs and DPAs (With Commentary)

By on November 1, 2021 in Deferred Prosecution Agreements, DOJ, Enforcement Agency Policy, Enforcement Agency Speeches, Individual Enforcement Action, Monitor, Non-Prosecution Agreement, Repeat Offenders, Uncategorized
Monaco

Last week, Deputy Attorney General Lisa Monaco delivered this speech as part of the ABA’s National Institute on White Collar Crime.

While the speech is generating a significant amount of attention, substantively the speech was largely a yawner and the policy changes articulated are marginal at best and elevate form over substance.

As has been highlighted several times on these pages, FCPA (and related) enforcement has long suffered from the following problem (nicely articulated by a practitioner in 1982):

Continue Reading

Is The SEC Finished With NPAs And DPAs?

By on April 13, 2021 in Deferred Prosecution Agreements, Non-Prosecution Agreement, SEC
Women Thinking

In early 2010, the SEC (see here) announced a series of measures “to further strengthen its enforcement program by encouraging greater cooperation from individuals and companies in the agency’s investigations and enforcement actions.”

The SEC’s then Director of Enforcement called the measures “a potential game-changer for the Division of Enforcement.”

Among the measures the SEC adopted was use of deferred prosecution agreements and non-prosecution agreements – resolution vehicles the SEC described as “tools [that] have been regularly and successfully used by the Justice Department in its criminal investigations and prosecutions” (which of course was and still remains a debatable point).

However, since this “game-changing” moment at the SEC over a decade ago, the agency has only used a DPA twice to resolve an issuer FCPA enforcement action and an NPA three times. Moreover, the SEC’s last use of an NPA or DPA to resolve an issuer FCPA enforcement was in mid-2016. All of which begs the question: is the SEC finished using NPAs and DPAs to resolve issuer FCPA enforcement actions?

Continue Reading

Observations From The OECD’s Phase 4 U.S. Review Report

By on November 19, 2020 in Affirmative Defense – Promotional Expenses, Deferred Prosecution Agreements, Disgorgement, Enforcement Agency Policy, Facilitating Payments, FCPA Statistics, Individual Enforcement Action, Industry Sweeps, Kokesh, Non-Prosecution Agreement, Obtain or Retain Business, OECD, Origins of FCPA Actions, Statute of Limitations, Voluntary Disclosure, Whistleblowers, Yates Memo
oecd

Recently, the OECD released its Phase 4 review of the United State’s implementation of the OECD Anti-Bribery Convention … in effect a review of the FCPA, its enforcement, and related issues.

The first question one needs to ask themselves is whether they care what “experts from Argentina and the United Kingdom” (as stated by the OECD “the report and its recommendations reflect the findings of experts from Argentina and the United Kingdom”) think about the U.S. Foreign Corrupt Practices Act, U.S. law enforcement (DOJ and SEC) policies and practices, and U.S. jurisprudence.

In any event, the Phase 4 Report “explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.” (See here for a 2010 post summarizing the OECD’s Phase 3 review).

Continue Reading

OECD Report On Non-Trial Resolutions Contains Mounds Of Data, But Punts On The Pressing Questions

By on March 28, 2019 in Deferred Prosecution Agreements, Non-Prosecution Agreement, OECD, Uncategorized
oecd

Recently, the OECD released this report titled “Resolving Foreign Bribery Cases with Non-Trial Resolutions.” As stated in the report “non-trial resolutions refer to a wide range of mechanisms used to resolve criminal matters without a full court proceeding, based on an agreement between an individual or a company and a prosecuting or another authority.” This term is obviously broad and covers a range of alternatives and there is little in common with a plea agreement compared to a non-prosecution agreement.

The 200+ page report and its six chapters contain mounds of comparative information and data that will likely be of interest to anyone interested in how foreign bribery enforcement actions are resolved.

Yet despite this data dump, the report punts on several pressing questions associated with alternative resolution vehicles. This is hardly surprising given that “the country mentors who provided guidance and contributed to the drafting” of the report were largely government officials including DOJ, SEC and U.K. SFO personnel.

Continue Reading

Powered by WordPress. Designed by WooThemes